[1948] EACA 13
The conviction for murder was based on a statement of Muha custom provided by assessors after the defence had closed, depriving the accused of the opportunity to challenge or controvert the evidence. The court held that if a conviction depends on local custom, it must be proved in evidence for the prosecution,...
Source-derived case information.
- Citation
- [1948] EACA 13
- Parties
- Appellant: Kiswaga s/o Luguma; Respondent: Rex
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Criminal Appeal No. 298 of 1947
- Procedural Posture
- Criminal Appeal / Appeal
- Outcome
- murder conviction quashed; manslaughter conviction substituted; sentence imposed
- Judges
- Bourke J, Edwards CJ, Graham Paul CJ
- Legal Topics
- Proof of Custom, Admissibility of Evidence, Murder Vs Manslaughter, Role of Assessors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kiswaga s/o Luguma
Appellant
Rex
Respondent
Procedural Posture
Criminal Appeal / Appeal
Legal Issues
- 1 Whether local native custom relied upon for a conviction of murder must be proved in evidence for the prosecution.
- 2 Whether the court may receive statements of custom after the defence has closed, denying the accused an opportunity to challenge or controvert such evidence.
Ratio Decidendi
The conviction for murder was based on a statement of Muha custom provided by assessors after the defence had closed, depriving the accused of the opportunity to challenge or controvert the evidence. The court held that if a conviction depends on local custom, it must be proved in evidence for the prosecution, allowing cross-examination and rebuttal. The learned judge was improperly influenced by the assessors' statement, and absent that influence, would have convicted of manslaughter. Accordingly, the murder conviction was quashed and replaced with manslaughter.
Court Disposition
murder conviction quashed; manslaughter conviction substituted; sentence imposed
Orders
- Conviction for murder quashed.
- Conviction for manslaughter substituted.
Full Case Text
Judgment text and source record
11 paragraphs
# COURT OF APPEAL FOR EASTERN AFRICA
Before SIR G. GRAHAM PAUL, C. J. (Tanganyika), EDWARDS, C. J. (Uganda), and BOURKE, J. (Kenya)
### REX, Respondent (Original Prosecutor)
#### υ
## KISWAGA S/O LUGUMA, Appellant (Original Accused) Criminal Appeal No. 298 of 1947
(Appeal from decision of H. M. High Court of Tanganyika) Criminal law—Local native custom—Stated by assessors after close of defence case.
Held (15-1-48).—That where a conviction for murder depends upon local native custom such custom must be proved in evidence for the prosecution. It may not be received by the Court when the accused has no longer an opportunity to challenge and controvert it.
## Appellant absent, unrepresented.
## Holland, Crown Counsel (Kenya), for the Crown.
JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—It is abundantly plain: from the terms of the learned Judge's judgment in this case that but for the statement of Muha custom given by the assessors at the end of the case after the defence was closed he would have convicted of manslaughter and not of murder. The conviction of murder depends therefore upon a statement of Muha. custom which the accused, to whom it means the difference between life and death, was given no opportunity to challenge or controvert. If for a conviction of murder the prosecution depends upon local custom, that local custom should be proved in evidence for the prosecution so that the witnesses to it may be cross-examined and the accused may have an opportunity of controverting it by other evidence. That we consider is the effect of the decision of this Court: in Criminal Appeal No. 97 of 1947 (Ndembera s/o Mwandawale v. Rex. Mombasa, 24th July, 1947).
We consider that this case is governed by Ndembera's case and that the earned Judge ought not to have been influenced by the statement of local custom given by the assessors at the end of the case. We think it clear from his judgment that if he had not been so influenced he would have convicted of manslaughter and not murder. That being so, we consider that we should quash the conviction of murder and substitute a conviction of manslaughter and it is so ordered. We also order by way of sentence that the appellant be imprisoned with hard labour for five years.